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The European Evidence Warrant: the Proposal of the European Commission
The European Evidence Warrant: the Proposal of the European
Commission*
Charles Williams**
I. Background
The European Commission’s proposal1 would apply the principle of mutual
recognition to a judicial decision – a European Evidence Warrant - for the
purpose of obtaining evidence for use in criminal proceedings. It would apply
only to the obtaining of evidence that is existing and available, but is to be
considered as a first step towards replacing the existing regime of mutual
assistance within the European Union by a single body of EU law based on
mutual recognition.
This paper is structured as follows. First, the background to the proposal is set
out. Secondly, the scope of this first step is explained. Thirdly, the principal
features of the proposal are presented. Fourthly, the connection between this
instrument and the issue of the admissibility of evidence is explained. Finally,
the state of play in the legislative procedure, as at February 2005, is presented.
1. The Tampere Conclusions and the mutual recognition programme
In line with the conclusions of the Tampere European Council, the
Commission’s proposal aims to make judicial cooperation in criminal matters
quicker and more effective by replacing the existing mutual legal assistance
regime in this area with a system based on mutual recognition.
Taking first the EU policy in this field, the Amsterdam Treaty introduced an
objective of the Union “to provide citizens with a high level of safety within an
area of freedom, security and justice …” (Article 29 Treaty on European Union).
The 1999 Tampere European Council concluded that the principle of mutual
recognition “should become the cornerstone of judicial co-operation in both
civil and criminal matters within the Union” (paragraph 33 of the Conclusions),
and moreover that the principle of mutual recognition “should also apply to pre-
trial orders, in particular those that would enable competent authorities quickly
to secure evidence and to seize assets which are easily moveable; evidence
lawfully gathered by one Member State’s authorities should be admissible before
the courts of other Member States, taking into account the standards that apply
there” (paragraph 36).
* This paper is an updated version of the presentation given at the ERA and CPS Conference entitled “Dealing
with European Evidence: Practical Reforms needed to improve Mutual Legal Assistance”, 18 – 20 November
2004 in Trier.
** Charles Williams, Legislative officer, European Commission, DG Justice, Freedom and Security. All views
expressed are those of the author. This paper has been updated to include developments up to the JHA Council
meeting of 24 February 2005.
1
Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects,
documents and data for use in proceedings in criminal matters, COM(2003) 688 final, 14.11.2003. 17
Charles Williams
The subsequent programme of measures to implement the principle of mutual
recognition of decisions in criminal matters2 included two measures – measures
5 and 6 – the aim of which was “to ensure that evidence is admissible, to prevent
its disappearance and to facilitate the enforcement of search and seizure orders,
so that evidence can be quickly secured in a criminal case”. Measure 5, of
relevance for the proposal here, was to seek ways to improve the obtaining of
evidence. It provides for “seeking feasible” ways of:
– ensuring that the reservations and declarations provided for in Article 5 of the
European Convention on Mutual Assistance of 1959, supplemented by
Articles 51 and 52 of the Convention implementing the Schengen Agreements
with regard to coercive measures, are not invoked between Member States, in
particular in the field of combating organised crime, laundering of proceeds
from crime, and financial crime;
and
– ensuring that the grounds for refusal of mutual aid provided for in Article 2
of the 1959 Convention, supplemented by Article 50 of the Convention
implementing the Schengen Agreement, are not invoked between Member
States.”
Measure 6 foresaw steps being taken to draw up an instrument on the recognition
of the freezing of evidence. This was implemented by the Framework Decision
on the execution of orders freezing property or evidence3 (hereafter, “Framework
Decision on freezing orders”) adopted by Council on 22 July 2003; the deadline
for implementation by Member States is 2 August 2005.
2. Improving on mutual legal assistance
Secondly, there are the deficiencies of the current arrangements for obtaining
evidence. The current arrangements are a mosaic of international and EU
instruments. The basic framework is provided by the Council of Europe 1959
Convention on Mutual Assistance in Criminal Matters.4 This provides for the
execution of requests for mutual assistance to be executed in accordance with the
law of the requested State, and provides a number of grounds on which requests
can be refused. The 1959 Convention has been supplemented in order to improve
co-operation by its additional protocols of 19785 and 2001.6 Within the EU, the
1959 Convention has been supplemented by the 1990 Schengen Convention,7 the
EU Convention of May 2000 on Mutual Assistance in Criminal Matters8 and its
2
OJ C 12, 15.1.2001, p. 10.
3
OJ L 196, 2.8.2003, p. 45.
4
Council of Europe, European Treaty Series No 30.
5
Council of Europe, European Treaty Series No 99.
6
Council of Europe, European Treaty Series No 182.
7
Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition
of checks at the common borders, OJ L 239, 22.9.2000, p. 19.
8
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the
18 European Union, OJ C 197, 12.7.2000, p. 1.
The European Evidence Warrant: the Proposal of the European Commission
2001 Protocol.9 The 2000 Convention and its 2001 Protocol have not yet entered
into force.
The system resulting from these arrangements has the following problems:
– despite improvements that have been made in recent years, mutual legal
assistance can still be slow and inefficient;
– different rules apply to different Member States to different extents. This is
due to the various declarations made by Member States to the 1959
Convention;
– there are legal barriers to cooperation arising out of grounds of refusal.
Measure 5 of the programme of measures focused on this issue. In particular,
dual criminality may be invoked (within the limits set out in Article 51 of the
1990 Schengen Convention) as a ground for refusing a request for search and
seizure.
Many elements of the Commission’s proposal take over or build on the 2000
Convention; in this respect the proposal is not a complete legal revolution. Some
have argued that before proposing the new system of the European Evidence
Warrant we should first wait for the 2000 Convention to be implemented and see
the resulting improvements. But the 2000 Convention has still not entered into
force (it needs ratification by eight of the ‘old’ Member States before it can enter
into force).10 That in itself clearly shows one of the advantages of a Framework
Decision: the Convention, agreed in 2000, has not yet entered into force; during
this period the Framework Decision on the European Arrest Warrant has been
proposed, adopted and implemented.
II. The proposed scope of the European Evidence Warrant
The Commission’s proposal provides that the European Evidence Warrant can
be used to obtain evidence that already exists and that is directly available
(Article 3). This includes both evidence that is already under the control of the
authorities and evidence under the control of an individual or business that can
be obtained by search and seizure or by a production order. The EEW would be
available for use in all types of criminal proceedings (Article 4).
In fact the proposed Framework Decision does not refer to “evidence”, except in
its title. Instead reference is made to “objects, documents and data”, thus leaving
open the question whether the objects, documents and/or data obtained using an
EEW will subsequently be admissible in the criminal proceedings for which they
are gathered. This issue of admissibility is addressed below.
9
Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union,
the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the
European Union, OJ C 326, 21.11.2001, p. 1.
10
Article 27(3). As at end February 2005, the Convention had been ratified by nine Member States of which only
five were ‘old’ Member States. 19
Charles Williams
Other types of evidence are excluded from the proposal, the idea being that – in
accordance with the step-by-step approach explained above – they will in due
course be brought within the mutual recognition regime. These other types of
evidence can be divided into two categories.
– first, there is evidence that does not already exist but which is directly
available. This includes the taking of evidence in the form of interviews of
suspects, witnesses or experts, and the taking of evidence through the
monitoring of telephone calls or banking transactions;
– secondly, there is evidence which, although already existing, is not directly
available without further investigation or analysis. This includes the taking of
evidence from the body of a person (such DNA samples). This category also
includes situations where further inquiries need to be made, in particular by
compiling or analysing existing objects, documents or data. An example is the
commissioning of an expert’s report.
This step-by-step approach has been criticised as leading to a ‘fragmentation’ of
the system for obtaining evidence, with the inconvenience for the practitioner of
having to use different types of instruments for different aspects of the same case
(for example, a European Evidence Warrant for objects and documents, but a
mutual assistance request for taking witness statements). The Commission does
recognise that the step-by-step approach risks introducing this inconvenience
during a transitional period.11
For that reason the Commission’s proposal states that a single mutual recognition
instrument should in due course replace all of the existing mutual assistance
regime. A single body of EU law would thus replace mutual legal assistance
within the EU in the same way that the European Arrest Warrant has replaced
extradition. However, achieving that objective straightaway by means of a single
instrument would be unduly complex. The European Evidence Warrant with the
scope described above was therefore proposed by the Commission as a first step.
The proposal is being discussed in Council on the basis that it should be limited
to existing and available evidence, as proposed by the Commission; but
consideration is being given to the possibility that it cover the taking of
statements made by persons when a search is being conducted on the basis of an
European Evidence Warrant. The discussions in Council have also dropped the
suggestion in the Commission’s original proposal that the EEW should also
cover the obtaining of records of criminal conviction. Discussions on criminal
records are continuing on the basis of separate new proposals from the
Commission.12
11
See paragraph 38 of the Explanatory Memorandum accompanying the Commission’s proposal.
12
Proposal for a Council Decision on the exchange of information extracted from the criminal record,
COM(2004) 664 final, 13.10.2004. Further proposals will also be made as announced in the White Paper on
exchanges of information on convictions and the effect of such convictions in the European Union, COM(2005)
20 10 final, 25.1.2005.
The European Evidence Warrant: the Proposal of the European Commission
III. The details of the Commission’s proposal
1. A European Warrant approach
The Commission’s proposal for a European Evidence Warrant adopts the same
approach to mutual recognition as the Framework Decision on the European
Arrest Warrant.13 Thus, the European Evidence Warrant is a single document
translated by the issuing authority into an official language of the executing
state, no further translation being needed.
The proposal allows the issuing State to specify only the objective to be achieved
(i.e. to obtain specific evidence), and leaves the executing State to obtain the
evidence in accordance with its domestic procedural law. This core obligation is
laid down in Article 11, which provides: “…executing authority shall recognise a
European Evidence Warrant … and shall forthwith take the necessary measures
for its execution in the same way as the objects, documents and data would be
obtained by an authority of the executing State.” Thus, although it is mandatory
under the European Evidence Warrant to obtain the evidence, it is left to the
executing State to determine, in the light of the information supplied by the
issuing State, the most appropriate way to obtain the evidence in accordance
with its domestic procedural law.
2. Faster procedures
As stated above, the sometimes slow execution of requests is one of the problems
of current arrangements. An important part of the Commission’s proposal is
therefore Article 17 which provides for deadlines for recognising and executing
European Evidence Warrants.
Under the proposal, any decision to refuse recognition or execution must be
taken and notified as soon as possible and, whenever practicable, within ten days
of the receipt of the European Evidence Warrant. This is the same deadline as
used in Article 17(2) of the Framework Decision on the European Arrest
Warrant with regard to persons who have consented to surrender.
Execution of the warrant may be postponed for one of the reasons set out in
Article 18. Otherwise it should be executed immediately in situations where the
evidence sought by the issuing authority is already under the control of the
executing authority. In other circumstances, such as where coercive measures are
required, the warrant should be executed, wherever practicable, within sixty days
of its receipt.
Transfer of the objects, documents or data obtained under the European
Evidence Warrant to the issuing State should take place immediately where the
evidence is already under the control of the executing authority. In other cases,
transfer should take place without delay and, wherever practicable, within thirty
13
OJ L 190, 18.7.2002, p. 1. 21
Charles Williams
days of the execution of the warrant. The only exception to this rule is where a
legal remedy is underway in the executing State, in which case the procedures and
deadlines of Article 19 apply.
These provisions are inspired by Article 17 of the Framework Decision on the
European Arrest Warrant. It can be noted that the average time taken to execute
an arrest warrant since that Framework Decision came into operation is
estimated to have fallen from more than nine months to forty-five days.14 Whilst
extradition and surrender are different from mutual legal assistance, it is to be
hoped that the average time to execute an Evidence Warrant could also be
reduced from the average time currently taken to execute a mutual legal
assistance request.
The Commission has also proposed that where, in exceptional circumstances, a
Member State cannot meet a deadline it shall inform Eurojust, giving the
reasons for the delay (Article 17(9)). This provision, also modelled on the
Framework Decision on the European Arrest Warrant, is intended to assist
Eurojust in its efforts to improve judicial co-operation in criminal matters.15
3. Dual criminality
Under the 1959 Convention, dual criminality may be imposed as a condition of
co-operation to obtain evidence only with respect to search and seizure powers.
Under Article 5 of the Convention, each contracting State may make a
declaration that it may impose one or more of the following conditions for the
execution of letters rogatory for search or seizure of property: that dual
criminality exists; that the offence is extraditable in the requested State; or that
the execution must be consistent with the law of the requested State.
This has, however, been further restricted by Article 51 of the 1990 Schengen
Convention. Member States may not, according to Article 51, make the
admissibility of letters rogatory for search and seizure dependent on conditions
other than the following: first, that the offence is punishable under the law of
both Member States by a custodial sentence of a maximum of at least six
months, or is punishable under the law of one of the two Member States by an
equivalent penalty and under the law of the other as an infringement which is
prosecuted by administrative authorities where the decision may give rise to
proceedings before a criminal court; the second condition is that the execution is
otherwise consistent with the law of the requested Member State.
The Commission’s position that dual criminality (the possibility to refuse to
execute an European Evidence Warrant on the grounds that the act on which it
is based does not constitute an offence under the national law of the executing
State) is inconsistent with the principle of mutual recognition of a judicial
14
Commission Report on the implementation of the European arrest warrant, COM(2005) 63 final, 23.02.2005.
15
In particular, Eurojust may in its annual report make proposals for the improvement of judicial cooperation in
22 criminal matters: Article 32(1) of the Council Decision setting up Eurojust, OJ L 63, 6.3.2002, p. 1.
The European Evidence Warrant: the Proposal of the European Commission
decision (Explanatory Memorandum §105). The Commission therefore took the
view that it should not be possible to refuse execution on such grounds. However,
in order to facilitate the changeover from the existing rules to a mutual
recognition regime without dual criminality, the Commission proposed a two-
stage approach: first, Article 16 would narrow the conditions in which execution
can be made dependant on dual criminality; secondly, Article 24(2) would
contain a “sunset clause” under which dual criminality, as more narrowly
defined by Article 16, could be invoked only for a five year transitional period.
The issue of dual criminality was discussed by justice ministers at the Justice and
Home Affairs Council meeting of 24 February 2005.16 At that meeting, the
Council agreed:
– to follow the same approach as in the Framework Decisions on the European
Arrest Warrant and on Freezing Orders of providing a list of 32 offences in
respect of which dual criminality cannot be invoked (Art. 16(2)), with there
being a possibility for the Council subsequently to add further offences to the
list. The Council did not follow the Commission’s proposal to use the longer
list of 39 offences from the Framework Decision on Financial Penalties;
– to include a three-year imprisonment threshold (i.e. a minimum level of the
maximum penalty) in the same way as the European Arrest Warrant
Framework Decision. The Commission had proposed that there be no penalty
threshold;
– to include a “territoriality clause”, the precise terms of which will need to be
decided, as an additional ground for refusal. Such a clause would allow a
Member State to refuse execution of a warrant when the facts in respect of
which the warrant is issued took place on the territory of the executing state;
– to delete the proposed sunset clause, providing instead for a review by the
Council after five years.
4. Safeguards17
Mutual recognition is founded on mutual trust. One of the ways to strengthen
mutual trust is to provide for common minimum procedural safeguards
throughout the European Union.18 As regards the European Evidence Warrant,
the Commission has proposed some specific safeguards for the issuing and
executing States to enhance the effectiveness, consistency and visibility of some
of the standards relevant for obtaining evidence.
16
Press Release 6228/05 (Presse 28), available on the Council’s website: http://ue.eu.int/ueDocs/cms_Data/docs/
pressData/en/jha/83980.pdf.
17
The issue of safeguards is also discussed in some depth by James Hamilton, in his contribution to this issue.
18
See the Commission’s Proposal for a Council Framework Decision on certain procedural rights in criminal
proceedings throughout the European Union, COM(2004) 328 final, 28.4.2004. 23
Charles Williams
a. Issuing State
In the issuing State, the Commission has proposed that the issuing judicial
authority be limited to judges, investigating magistrates or prosecutors (Article
2(c)). There is also a need to ensure equivalence with the domestic criminal
procedural law of the issuing State when dealing with evidence obtained in
another Member State. For this reason, one of the proposed conditions for
issuing a European Evidence Warrant is that the issuing judicial authority must
be satisfied that it would be able to obtain the objects, documents or data in
similar circumstances if they were on the territory of its own Member State
(Article 6(b)). This would prevent the European Evidence Warrant from being
used to circumvent national safeguards on obtaining evidence. As an example,
this would preclude using the European Evidence Warrant to obtain objects,
documents or data from the executing State that would be impossible to obtain
in the issuing State because it is protected by legal, medical or journalistic
privileges.
The other proposed conditions for issuing an European Evidence Warrant are
that the issuing judicial authority must be satisfied that the object, document or
data being sought is necessary and proportionate for the proceedings in question
(Article 6(a)) and that it is likely to be admissible evidence in the proceedings for
which it is sought (Article 6(c)).
b. Executing State
In the executing State, the Commission has proposed that there be a condition
that the executing authority use the least intrusive means necessary to obtain the
evidence (Article 12(1)(a)) that the fundamental right not to incriminate oneself
is protected (Article 12(1)(b)), and that there be additional safeguards with
respect to search and seizure (Article 12(2)).19 Further safeguards are provided in
the proposed grounds of refusal: where execution would infringe the ne bis in
idem (double jeopardy) principle (Article 15(1) and 15(2)(a)) and where there is
a privilege or immunity under the law of the executing State which makes it
impossible to execute the European Evidence Warrant (Article 15(2)(b)).
c. Legal remedies
When coercive measures are used to obtain the evidence, it is essential that
effective legal remedies exist in both the issuing and executing States. It is not
compulsory, under the proposal, for Member States to introduce legal remedies
in situations where, for example, the evidence is already under the control of a
judicial authority in the executing State and is simply being transferred to the
issuing authority. In such circumstances, it is left to the Member States to protect
the rights of persons affected by the proceedings in accordance with their
domestic law and in conformity with the European Convention on Human
Rights.
24 19
See more detailed discussion in James Hamilton’s article in this issue.
The European Evidence Warrant: the Proposal of the European Commission
Where execution of the EEW does require coercive measures, the proposal
requires Member States to put in place the necessary arrangements to ensure
that interested parties, including bona fide third parties, have legal remedies in
order to preserve their legitimate interests (Article 19(1)).
In general, the legal remedy should be brought before a court in the issuing State
or in the executing State in accordance with the national law of each. However,
the Commission has proposed that it would not be possible for the substantive
reasons for issuing the European Evidence Warrant to be challenged in the
executing State. Instead, the reasons for issuing the warrant could be challenged
only in an action brought before a court in the issuing State (Article 19(2)).
The issuing State would be required to ensure that any time limits for bringing
an action are applied in a way that guarantees the possibility of an effective legal
remedy for interested parties. Both the issuing and executing States would be
required to take the necessary measures to facilitate the exercise of the right to
bring an action, in particular by providing relevant and adequate information to
interested parties (Article 19(3), (5)).
5. Jurisdiction for computer data
The European Evidence Warrant will be capable of being used to obtain
documents and data held electronically. In principle, there should be no
difference between a document held electronically and a document held in
physical form. However, there is a difference with respect to jurisdiction. As an
example, some multinational businesses will hold computer data about their
customers in one Member State on a server located in another Member State.
The issuing State is likely to send the European Evidence Warrant to the
Member State in which the customer is located rather than the Member State in
which the server is located. In such cases, the Commission has proposed that the
evidence can be obtained without the need to seek the agreement of the Member
State in which the server is located. This would ensure the effectiveness of cross-
border investigations, and would provide legal clarity for industry.
IV. Evidence and its admissibility
The Commission’s proposal does not directly address the issue of mutual
admissibility of evidence. This is because consultation with experts identified the
need for further preparatory work. However, the proposal is nevertheless
intended to facilitate the admissibility of evidence obtained from the territory of
another Member State.
First, the admissibility of evidence should be facilitated by the inclusion of some
procedural safeguards to protect fundamental rights.
Secondly, admissibility should be facilitated by maintaining and clarifying the
approach in Article 4 of the 2000 Convention. This lays down a new principle in 25
Charles Williams
which the requested State must provide assistance in accordance with the
formalities and procedures expressly indicated by the requesting State to the
maximum extent possible. The requested State can only refuse to comply with
these requirements where this would be contrary to its fundamental principles of
law or where the Convention itself expressly states that the execution of requests
is governed by the law of the requested State. This is also consistent with the
approach in the Council Regulation on the taking of evidence in civil or
commercial matters.20 In respect of four specific formalities (points (a) to (d) of
Article 13) that may be required by the issuing authority, the Commission has
proposed to go further than the 2000 Convention by removing the possibility to
refuse to comply with those formalities.
Thirdly, as described above, it is proposed that the European Evidence Warrant
should be issued only when the issuing authority is satisfied that it would be
possible to obtain the objects, documents or data in similar circumstances if they
were on the territory of its own Member State. This should also facilitate the
subsequent admissibility of the objects, documents or data as evidence in
proceedings in the issuing State.
The Commission commissioned a study into the laws of evidence in EU Member
States which was completed recently.21 The Commission will use the results of
the study to assess whether it is possible to devise common minimum standards
of fairness in obtaining, handling and using evidence.
V. State of play
Under the relevant provisions of the EU Treaty,22 a Framework Decision must be
adopted by Council acting unanimously after consulting the European
Parliament.
1. European Parliament
The European Parliament, by resolution adopted at its plenary session of 31
March 2004, approved the Commission’s proposal subject to it being amended.23
The amendments proposed by the Parliament include notably the addition of
further grounds of refusal, the extension of the provisions on legal remedies so
they also cover Evidence Warrants executed without coercive measures, and a
provision that the evidence acquired using an Evidence Warrant shall in no way
prejudice the rights of defence in subsequent criminal proceedings.
20
Council Regulation (EC) No 1206/2001 of 28 May 2001 on co-operation between the courts of the Member
States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1.
21
The study was undertaken by the Law Society of England & Wales; the full report is available at:
http://www.lawsociety.org.uk/secure/file/136961/d:/teamsite-deployed/documents//templatedata/Internet%20
Documents/International%20legal%20development%20projects/Documents/evidcrimproceu1004.pdf.
22
Articles 34(2)(b) and 39.
23
See European Parliament resolution P5_TA (2004) 0243 of 31 March 2004 (available on website:
26 www.europarl.eu.int).
The European Evidence Warrant: the Proposal of the European Commission
If the Commission’s proposal is significantly amended by the Council, then the
Parliament will need to be consulted a second time.
2. Council
In the Hague Programme setting out for the coming years the EU’s policy in the
area of Justice and Home Affairs, the European Council indicated that the
Council should adopt the Framework Decision on the European Evidence
Warrant by the end of 2005. In December 2004, the Dutch Presidency reported
on progress to the Justice and Home Affairs Council concluding that, on the
basis of progress made by then, the perspective of adopting the Framework
Decision in December 2005 was ambitious but not out of reach.
By the end of February 2005, the Council working group examining the
proposal had completed a first reading of the proposal. The first Council
discussions on specific provisions of the instrument were those in February 2005
concerning dual criminality; these are referred to above.
VI. Conclusion
As was said by Ken Macdonald in his presentation to the ERA conference,24
judicial authorities have two requirements when they gather evidence, whether
domestically or from another country: first, that the evidence should be obtained
in time, and, secondly, that it should be in a useable form. For the obtaining of
evidence from another EU Member State, the Commission’s proposal for a
European Evidence Warrant aims to achieve the first requirement – timeliness –
and to help achieve the second – admissibility.
24
See Ken Macdonald’s contribution to this issue. 27
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